"Leave the holy books alone" – says DNA's R Jagannathan

I  was intrigued by this suggestion directed at members of Hindusthan’s Law Commission on their report recommending changes in the country’s anti-bigamy laws.

I’m posting the relevant newspaper article as is and then will comment as per flow –

– Namaste

Leave the holy books alone
By – R Jagannathan

The Law Commission’s opinion on Islam and bigamy is well intentioned, but it’s really a double-edged sword. For two reasons. First, it is not appropriate for a non-religious body to quote the scriptures to justify a stand it wants to take for reasons of gender equity and justice. (Pala S – In Hindusthan that has become India, each religious “group” is governed by a Personal Law that is derived from or embedded in it’s particular scripture. This non-religious body (Law Commission) cannot but refer to scripture while making recommendations to change or adjust Personal Laws. If conflict is discerned between secular-liberal notions of equity and justice and it’s scriptural variant, then logically, it is scripture that must over-ride secular-liberal notions of justice. Shri Jagannathan displays ignorance while lambasting the commission in this respect. The commission’s report itself resolves this seeming in-congruence very ably as we shall see here at page 42-  

 

“Although we fully agree with the fact that traditional understanding

of the Muslim law on bigamy is gravely faulty and conflicts with the true

Islamic law in letter and spirit, to keep our recommendations away from

any unhealthy controversy we are not recommending any change in this

regard in Muslim law.”    

 

Second, once a religious justification is used to promote a cause – monogamy in this case – what is to stop narrow-minded loonies from quoting the same books for whatever mayhem they have in mind? If the courts and law agencies start using religious justifications for secular causes, how can they uphold the Constitution? (Pala S – Firstly, monogamy or (for that mater)bigamy/polygamy, can hardly be owned as purely secular-liberal in inspiration. Just like bigamy/polygamy is justified in scripture (Islam), so is monogamy praised and mandated (Read Ramayana and the Bible). But the point still is that our founders (Constitutionalists) referred to religious scripture for authority while adapting Personal Laws framed by the British and followed by Islamic and Hindu society earlier. We have always used “religious justifications” when it came to Personal Laws. The Commission has done nothing new.)

There is no need to go down that slippery slope. A secular state should be making laws on the basis of what its legislators think is good for the people and not because some revered tome said so, or didn’t. This point is crucial because the scriptures are often self-contradictory and/or unclear on the importance they assign to various injunctions to the faithful. Even when they are clear, a lot depends on how ordinary courts are going to ensure compliance with their intent. (Pala S – Shri Jagannathan is wrong again. He must know that Personal Laws based on religious scripture have always existed in Independent and Pre-Independent Hindusthan. In fact the reverse is the fiction. In Personal Law, our Legislature and Judiciary have always kept in mind and/or referred to “competent” religious authorities while legislating or passing judgement wrt Personal Laws. This is more true with regards to aggressive Minority religious “groups”.)

Take the bigamy issue and the Koran. The Law Commission made this gratuitous remark in its 227threport to the government: “We fully agree withthe fact that traditional understanding of Muslim law on bigamy is gravely faulty and conflicts with true Islamic law in letter and spirit.” According to Tahir Mahmood, a member of the commission, the prophet’s intention was to restrict rampant bigamy in the Arab society he was living in. Bigamy is allowed under the Koran only if a man can treat all wives equally, which is practically impossible. (Pala S – There is nothing gratuitous in the remark attributed to Shri Tahir Mahmood. It’s a statement of fact. More so, it is relevant to the issue taken up by the commission since it is this piece of Islamic Personal Law that is sought to be used or misused by bigamist converts to Islam.)

Even if one agrees with this interpretation, there are several issues with this kind of observation. Nobody asked the commission for its views on Koranic laws. Secondly, even if the Koran does not permit bigamy according to a new, liberal interpretation, who will decide whether spouses have been treated equally? The man? Or one of his wives? Or a court of law? (Pala S – Shri Jagannathan persists in being disingenuous here. In discussing changes to Personal Laws, the Law Commission must necessarily refer to religious scripture or competent religious authority before making it’s recommendations. There is simply no other way. In the particular issue of “equal treatment of wives” which is a pre-condition and condition of bigamy/polygamy per Islamic Personal Law and the Prophet’s injunctions; it can still be argued that the Qazi (marrying authority) can take that call. It’s a question of procedure and process rather than of scriptural irrelevance.)

In practice, therefore, it makes little sense to look to the Koran – or any holy book – for an answer, since the book cannot decide on someone’s real intent. Arms of the state should not make references to holy books for approval or disapproval. A good Muslim like Tahir Mahmood should not drag the Koran into earthly controversies.(Pala S – Again, Shri Jagannathan is confusing scriptural sanction with compliance. Compliance is to be ensured by man. Laws attributed to God are articulated by accepted religious authority. With respect to  Islam that would be the Koran and the Hadiths. A further blunder in understanding Islam is exposed – “A good Muslim like Tahir Mahmood should not drag the Koran into earthly controversies.” Islam is very little if not “earthly”.)

Our own courts, including the Supreme Court, have often fallen into the same trap of quoting from the holy books of various communities while dealing with sensitive cases involving them. In the Shah Banoverdict, the Supreme Court upheld a Muslim woman’s right to maintenance under secular provisions of the law (section 125 of the Code of Criminal Procedure, which enables courts to force husbands with sufficient means to support destitute wives). But, in its wisdom, the court could not stop itself from quoting the Koran to justify its decision in favour of Shah Bano. Once it used the book to justify a secular law, it took the politicians little time to force Rajiv Gandhi to give the book primacy over the law of the land. (Pala S – Revealingly, what Shri Jagannathan has just said here is that when it comes to a conflict between Islamic Personal Law and the Criminal Procedure Code, it is Islamic Personal Law that takes precedence over any other contesting version. The Supreme Court was adjudicating a divorce settlement and sought to compensate the divorcee (Shah Bano) by referring to the CPC section. It was a Judicial slight of hand that was caught by an alert Muslim intelligentsia. The reversal of that judgement only confirms the primacy of religious Personal laws.)

Sooner or later, we are going to have to grapple with the need for a uniform civil code, but there are several intermediate pathways that will help us avoid needless communal polarisation. First, there is no need to change any law or challenge anyone’s right to more than one marriage on the basis of what the scriptures say. In fact, if we approach the entire issue from the point of view of the individual’s right to choose, there is no need to oppose bigamy through changes in the law either. (Pala S – Interestingly, I support this position; though not from the perspective of Individual Rights but from the perspective of Societal Sanction.)

The law comes into the picture only if one of the spouses opposes the idea and brings a complaint against the bigamist. Individuals who voluntarily enter into multi-partner arrangements are well within their rights to do so – as long as all partners have the same rights. If Muslims – or, for that matter, individuals from any other community – choose to settle marital disputes within the community, there will be no conflict with personal laws. (Pala S – So, is Shri Jagannathan not going to oppose religious Personal Laws now?)

Private individuals can choose how they want to settle disputes. The conflicts, if any, will relate to cases where an individual chooses to demand his/her rights on the basis of constitutionally guaranteed rights rather than kowtow to personal laws. Here, the courts have to be firm, and not slide back into quoting the holy books. The rights of minorities are based on the rights of the individual, and community laws cannot trump the rights of individuals. There is, after all, no minority smaller than one. (Pala S – So, in effect Shri Jagannathan is saying that religious Personal Law cannot over-ride Fundamental Rights enshrined in our Constitution. My position is that the sanctity of religious Personal Law wrt to Minorities is also a Constitutional guarantee. It will take a magician to resolve such a conflict. Shah Bano’s case was therefore, magical.)

There will come a time when all communities will be ready for a shift to a uniform civil code, but in the meanwhile, courts and law commissions can avoid fuelling the fire of communalism by quoting the scriptures. It’s none of their business. (Pala S – Here, Shri Jagannathan completely misunderstands the purpose of the Law Commission’s report. The Law Commission, through it’s report, recommends amendments in marriage laws of various Personal Laws so as to curtail bigamist converts to Islam.)

–Varta–

Palahalli S notes : The following is my position;

a. Hindusthan is composed of religious groups that ideally should be segregated as being composed of the Hindu Nation and Hindusthan’s Minorities. This reality is projected by the legal definition of who a Hindu is.

b. As can be seen, the primary demarcating factor is religion. As regards Hindus, it is religious diversity within Sanatana Dharma.

c. Historically, Hindus have never had a separate Personal Law that was secular and disconnected from their everyday religious life. Some of their Personal Laws have been codified to be sure. As for Hindusthan’s Minorities, they too have had no history of sanitized secular laws. Read – Christian Law, Muslim Law, Hindu Law with Hindu Codes

d. Given this background it is common sense that any move toward a Uniform Civil Code will not just be impractical but also be rejected by both the Hindu Nation and Hindusthan’s Minorities.

e. The argument for a Uniform Civil Code is unconvincing. The need for the UCC is based on the assumption that Religion based Personal Law cannot be reformed. While the argument is true to a great extent, the same cannot be converted into a need for the UCC thereof. I believe reform must emanate from within each culture and society. The State cannot force it. Any such force will pervert the application and adherence to whatever laws are made. Moreover, Hindusthan is a traditional society. It’s citizens give weightage to their religious practices and not to any secular notion that drives them away from such practices.

f.  Finally, it does seem that I favor all Personal Laws including the Shar’ia. This is true. I favor the Shar’ia for Muslims. If the Muslim wants to be governed by Koranic Personal Law, then no one else should have objection to it.

Important – With respect to the issue of bigamist converts to Islam, I have a simple suggestion.

Make any conversion illegal.

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